01-004383RX
Angelo`s Aggregate Materials, Ltd. vs.
Suwannee River Water Management District
Status: Closed
DOAH Final Order on Friday, April 12, 2002.
DOAH Final Order on Friday, April 12, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ANGELO'S AGGREGATE MATERIALS, )
12LTD., )
14)
15Petitioner, )
17)
18vs. ) Case No. 01 - 4383RX
25)
26SUWANNEE RIVER WATER )
30MANAGEMENT DISTRICT, )
33)
34Respondent. )
36)
37FINAL ORDER
39Pursuant to notice, a formal hearing was held in this
49case on January 10 and 28, 2002, in Live Oak, Florida, before
61the Division of Administrative Hearings, by its designated
69Administrative Law Judge, Barbara J. Staros.
75APPEARANCES
76For P etitioner: Daniel H. Thompson, Esquire
83Berger, Davis & Singerman, P.A.
88215 South Monroe Street
92Suite 705
94Tallahassee, Florida 32301
97For Respondent: Bruce Robinson, Esquire
102Brannon, Brown, Haley,
105Robinson & Bulloc k, P.A.
110Post Office Box 1029
114Lake City, Florida 32056
118STATEMENT OF THE ISSUE
122Whether Rules 40B - 1.702(4); 40B - 4.1020(12) and (30);
13240B - 4.1030; 40B - 4.1040(1)(b) and (c); 40B - 4.2030(4);
14340B - 4.3000(1)(a); 40B - 4.3010; 40B - 4.3020; 4 0B - 4.3030; 40B -
1584.3040; and 40B - 400.103(1)(h), Florida Administrative Code, of
167the Suwannee River Water Management District, are an invalid
176exercise of delegated legislative authority for reasons
183described in the Second Amended Petition to Determine Validit y
193of Rules.
195PRELIMINARY STATEMENT
197Petitioner, Angelo's Aggregate Materials, Inc.
202(Angelo's), filed a Petition to Determine Validity of Existing
211Rules with the Suwannee River Water Management District
219(District) on or about November 13, 2001. The Petition was
229forwarded to the Division of Administrative Hearings on
237November 13, 2001, and was assigned to Lawrence P. Stevenson,
247Administrative Law Judge.
250By order dated November 13, 2001, this case was
259consolidated for hearing with DOAH Case No. 01 - 4026RU. A
270Motion to Change Venue was filed and by order dated November
28127, 2001, venue was changed to Live Oak, Florida. The cases
292were then reassigned to Administrative Law Judge Barbara J.
301Staros. By agreement of the parties, the case was continued
311until Janua ry 10, 2002.
316Petitioner's motions to amend the Petition were granted
324and the case proceeded under the Second Amended Petition to
334Determine Validity of Existing Rules.
339At hearing, Petitioner presented the testimony of two
347witnesses, Dennis Price and Joh n Barnard. With the exception
357of Exhibit 15, Petitioner's Exhibits 1 through 22, including
366the deposition testimony of David Still, David Fisk, and Brett
376Cunningham, were admitted into evidence. Exhibit 15 was
384rejected.
385Respondent presented the testimon y of three witnesses,
393David Still, Brett Cunningham, and David Fisk. Respondent's
401Exhibits 1 through 10, including the deposition testimony of
410Dennis Price and John Barnard, were admitted into evidence.
419The parties' request for official recognition of pe rtinent
428rules of the Florida Administrative Code was granted. The
437hearing had not concluded at the end of the day on January 10,
4502002, so the continuation of the hearing was rescheduled for
460January 28, 2002.
463A Transcript consisting of three volumes was fi led on
473February 11, 2002. The parties requested more than 10 days in
484which to file Proposed Final Orders. That request was
493granted. The parties timely filed Proposed Final Orders which
502have been considered in the preparation of this Final Order.
512While the cases were consolidated for hearing, separate final
521orders have been prepared addressing the challenge to the
530validity of existing rules and the challenge to alleged agency
540statements.
541FINDINGS OF FACT
544Stipulated Facts
5461. Angelo's is a Florida Limi ted Partnership, whose
555address is 26400 Sherwood, Warren, Michigan 48091.
5622. The District is an agency of the State of Florida
573established under Chapter 373, Florida Statutes, with its
581address at 9225 County Road 49, Live Oak, Florida 32060.
5913. Angelo' s owns property in Hamilton County
599approximately four miles to the east of Interstate 75 and to
610the north of U.S. Highway 41, immediately to the east of the
622Alapaha River.
6244. Angelo's conducts commercial sand mining operations
631on a portion of its prope rty pursuant to various agency
642authorizations, including an Environmental Resource Permit
648(ERP) issued by the Florida Department of Environmental
656Protection (Department), Permit No. 158176 - 001, and a Special
666Permit issued by Hamilton County, SP 98 - 3.
6755. The ERP was issued by the Department pursuant to its
686authority under Chapter 373, Part IV, Florida Statutes.
694Angelo's mining operations constitute a "mining project" as
702that term is used in Section II.A.1.e of an Operating
712Agreement Concerning Regulation under Part IV, Chapter 373,
720Florida Statutes, and Aquaculture General Permits under
727Section 403.814, Florida Statutes, between the District and
735the Department (Operating Agreement).
7396. The Operating Agreement has been adopted as a
748District rule pursuant to Rule 40B - 400.091, Florida
757Administrative Code.
7597. Angelo's has filed with the Department an application
768to modify its ERP to expand its sand mining operations into an
780area of its property immediately to the west of its current
791operations (the "propose d expanded area"). Angelo's
799application is being processed by the Department at this time.
8098. Angelo's ERP modification application is being
816processed by the Department under the Operating Agreement.
824The District has asserted permitting jurisdiction ov er the
833proposed expanded area because the proposed sand mining
841activities would occur in what the District asserts to be the
852floodway of the Alapaha. The District asserts that an ERP
862would be required from the District so that the District can
873address the work of the district (WOD) impacts.
8819. Petitioner has not filed a permit application with
890the District regarding the project. It is Petitioner's
898position that to do so would be futile.
906The Challenged Rules
90910. The rules or portions thereof which are c hallenged
919in this proceeding are as follows:
925Rule 40B - 1.702(4), Florida Administrative Code, reads as
934follows:
935(4) A works of the district permit under
943Chapter 40B - 4, F.A.C., must be obtained
951prior to initiating any project as outlined
958in (3) above within a regulatory floodway
965as defined by the District.
970Rule 40B - 4.1020(12) and (30), Florida Administrative
978Code, read as follows:
982(12) "Floodway" or 'regulatory floodway"
987means the channel of a river, stream, or
995other watercourse and adjacent land areas
1001that must be reserved in order to discharge
1009the 100 - year flood without cumulatively
1016increasing the 100 - year flood elevation
1023more than a designated height. Unless
1029otherwise noted, all regulatory floodways
1034in the Suwannee River Water Management
1040District pro vide for no more then one - foot
1050rise in surface water.
1054* * *
1057(30) "Work of the district" means those
1064projects and works including, but not
1070limited to, structures, impoundments,
1074wells, streams, and other watercourses,
1079together with the appurtenant fac ilities
1085and accompanying lands, which have been
1091officially adopted by the governing board
1097as works of the district. Works of the
1105district officially adopted by the board
1111are adopted by rule in Rule 40B - 4.3000 of
1121this chapter.
1123Rule 40B - 4.1030, Florida Adm inistrative Code, reads as
1133follows:
1134(1) The implementation dates of this
1140chapter are as follows:
1144(a) January 1, 1986 for Rule 40B -
11524.1040(1)(a) which requires persons to
1157obtain surfacewater management permits.
1161(b) April 1, 1986 for Rule 40B -
11694.1040(1)(b ) and Rule 40B - 4.3040 which
1177require persons to obtain works of the
1184district development permit if the proposed
1190development is in one of the following
1197areas adopted as a work of the district.
12051. The Alapaha River and its floodway in
1213Hamilton County, Flori da;
12172. The Aucilla River and its floodway in
1225Jefferson, Madison, or Taylor counties,
1230Florida;
12313. The Suwannee River or its floodway in
1239Columbia, Hamilton, Lafayette, Madison, or
1244Suwannee counties, Florida; or
12484. The Withlacoochee River and its
1254floodw ay in Hamilton or Madison counties,
1261Florida.
1262(c) July 1, 1986 for Rule 40B - 4.1040(1)(b)
1271or 40B - 4.3040 which require persons to
1279obtain work of the district development
1285permit if the proposed development is in
1292one of the following areas adopted as a
1300work o f the district.
13051. The Santa Fe River and its floodway in
1314Alachua, Bradford, Columbia, Gilchrist,
1318Suwannee, or Union counties, Florida; or
13242. The Suwannee River and its floodway in
1332Dixie, Gilchrist, or Levy counties,
1337Florida.
1338Rule 40B - 4.1040(1)(b) an d (c), Florida Administrative
1347Code, reads as follows:
1351(1) Permits are required as follows:
1357* * *
1360(b) Works of the district development
1366permit prior to connecting with, placing
1372structures or works in or across,
1378discharging to, or other development within
1384a work of the district.
1389(c) When the need to obtain a works of the
1399district development permit is in
1404conjunction with the requirements for
1409obtaining a surfacewater management permit,
1414application shall be made and shall be
1421considered by the distric t as part of the
1430request for a surfacewater management
1435permit application. Otherwise, a separate
1440works of the district development permit
1446must be obtained.
1449Rule 40B - 4.2030(4), Florida Administrative Code, reads as
1458follows:
1459(4) The new surfacewater manage ment
1465systems or individual works shall not
1471facilitate development in a work of the
1478district if such developments will have the
1485potential of reducing floodway conveyance .
1491(emphasis supplied)
1493Rule 40B - 4.3000(1)(a), Florida Administrative Code, reads
1501as fol lows:
1504(1) The governing board is authorized to
1511adopt and prescribe the manner in which
1518persons may connect with or make use of
1526works of the district pursuant to Section
1533373.085, Florida Statutes. Further,
1537Section 373.019(15) provides that works of
1543the d istrict may include streams and
1550accompanying lands as adopted by the
1556governing board. In order to implement the
1563non - structural flood control policy of the
1571district, the governing board finds it is
1578necessary to prevent any obstruction of the
1585free flow of w ater of rivers and streams
1594within the district. Therefore, the
1599governing board does hereby adopt the
1605following rivers and their accompanying
1610floodways as works of the district:
1616(a) The Alapaha River and its floodway in
1624Hamilton County, Florida; . . . .
1631Rule 40B - 4.3010, Florida Administrative Code, reads as
1640follows:
1641(1) A general works of the district
1648development permit may be granted pursuant
1654to the procedures in Rule 40B - 1.703 to any
1664person for the development described below:
1670(a) Construction of a structure for
1676single - family residential or agricultural
1682use including the leveling of land for the
1690foundation and associated private water
1695supply, wastewater disposal, and driveway
1700access which is in compliance with all
1707applicable ordinances or rules of lo cal
1714government, state, and federal agencies,
1719and which meets the requirements of this
1726chapter.
1727(2) A general permit issued pursuant to
1734this rule shall be subject to the
1741conditions in Rule 40B - 4.3030.
1747Rule 40B - 4.3020, Florida Administrative Code, reads a s
1757follows:
1758Content of Works of the District
1764Development Permit Applications.
1767(1) Applications for a general work of the
1775district development permit shall be filed
1781with the district and shall contain the
1788following:
1789(a) Form 40B - 4 - 5, "Application for Gen eral
1800Work of the District Development Permit,"
1806Suwannee River Water Management District,
18114 - 1 - 86, hereby incorporated by reference
1820and which contains the following:
18251. The applicant's name and complete
1831address including zip code;
18352. The owner's name a nd complete address
1843if applicant is other than the owner;
18503. If applicable, the name, complete
1856address, phone number, and contact person
1862of the applicant or owner;
18674. Copies of all permits received from
1874local units of government, state, or
1880federal agen cies, specifically a copy of
1887the building or development permit issued
1893by the appropriate unit of local
1899government, including any variances issued
1904thereto, and a copy of the onsite sewage
1912disposal system permit issued by the
1918Florida Department of Health an d
1924Rehabilitative Services under Chapter 10D -
19306, Florida Administrative Code;
19345. A site plan to scale showing all
1942improvements, work, or works with any
1948conditions or limitations placed thereon;
1953and
19546. Any supporting calculations, designs,
1959surveys, or app licable documents, which in
1966the applicant's opinion, may support the
1972application.
1973(2) Applications for individual or
1978conceptual approval works of the district
1984development permits shall be filed with the
1991district and shall contain the following:
1997(a) For m 40B - 4 - 4, "Application for
2007Surfacewater Management System
2010Construction, Alteration, Operation,
2013Maintenance, and/or Works of the District
2019Development", Suwannee River Water
2023Management District, 10 - 1 - 85, hereby
2031adopted by reference and which contains the
2038fo llowing:
20401. The applicant's name and complete
2046address including zip code;
20502. The owner's name and complete address
2057if applicant is other than the owner;
20643. If applicable, the name, complete
2070address, phone number, and contact person
2076of the owner.
20794. General project information including:
2084a. The applicant's project name or
2090identification number;
2092b. The project location relative to
2098county, section, township, and range, or a
2105metes and bounds description;
2109c. The total project area in acres;
2116d. Th e total land area owned or controlled
2125by the applicant or owner which is
2132contiguous with the project area;
2137e. A description of the scope of the
2145proposed project including the land uses to
2152be served;
2154f. A description of the proposed
2160surfacewater managem ent system or work;
2166g. A description of the water body or area
2175which will receive any proposed discharges
2181from the system; and
2185h. Anticipated beginning and ending date
2191of construction or alteration.
2195(3) Copies of all permits received from,
2202or applica tions made to, local units of
2210government, state, or federal agencies.
2215(4) A site plan to scale showing all
2223improvements, work, or works with any
2229conditions or limitations placed thereon.
2234(5) Any supporting calculations, designs,
2239surveys, or applicable legal documents,
2244which in the applicant's opinion, support
2250the application.
2252(6) Copies of engineer or surveyor
2258certifications required by this chapter.
2263Rule 40B - 4.3030, Florida Administrative Code, reads as
2272follows:
2273Conditions for Issuance of Works of t he
2281District Development Permits.
2284(1) The district will not approve the
2291issuance of separate permits for
2296development in a work of the district for
2304any proposed project that requires a
2310district surfacewater management permit
2314pursuant to Part II of this cha pter. For
2323such projects, development in a work of the
2331district may be authorized as part of any
2339surfacewater management permit issued.
2343(2) The district will not approve the
2350issuance of a works of the district
2357development permit for any work,
2362structures, road, or other facilities which
2368have the potential of individually or
2374cumulatively reducing floodway conveyance
2378or increasing water - surface elevations
2384above the 100 - year flood elevation, or
2392increasing soil erosion . The district will
2399presume such a facili ty will not reduce
2407conveyance or increase water - surface
2413elevations above the 100 - year flood
2420elevation or increase soil erosion if:
2426(a) Roads with public access are
2432constructed and laid out in conformance
2438with the minimum standards of local
2444government. W here roads are not required
2451to be paved, the applicant must provide
2458design specifications for erosion and
2463sediment control. Where roads are required
2469to be paved, swales will generally be
2476considered adequate for erosion and
2481sediment control;
2483(b) Building s in the floodway are elevated
2491on piles without the use of fill such that
2500the lowest structural member of the first
2507floor of the building is at an elevation at
2516least one foot above the 100 - year flood
2525elevation;
2526(c) The area below the first floor of
2534eleva ted buildings is left clear and
2541unobstructed except for the piles or
2547stairways;
2548(d) A permanent elevation monument is
2554established on the property to be developed
2561by a surveyor. The monument shall be
2568adequate to establish land surface and
2574minimum buildup elevations to the nearest
25801/100 of a foot;
2584(e) No permanent fill or other
2590obstructions are placed above the natural
2596grade of the ground except for minor
2603obstructions which are less than or equal
2610to 100 square feet of the cross - sectional
2619area of the floo dway on any building or
2628other similar structure provided that all
2634such obstruction developed on any single
2640parcel of land after the implementation
2646date of this chapter is considered
2652cumulatively;
2653(f) No activities are proposed which would
2660result in the f illing or conversion of
2668wetlands.
2669(3) For any structure placed within a
2676floodway which, because of its proposed
2682design and method of construction, may, in
2689the opinion of the district, result in
2696obstruction of flows or increase in the
2703water surface elevat ion of the 100 - year
2712flood, the district may require as a
2719condition for issuance of a work of the
2727district development permit that an
2732engineer certify that such a structure will
2739not obstruct flows or increase 100 - year
2747flood elevations.
2749(4) The following c onditions shall apply
2756to all works of the district development
2763permits issued for development on lands
2769subdivided after January 1, 1985:
2774(a) Clearing of land shall be limited
2781[except as provided in (b) and (c) below]
2789to that necessary to remove diseased
2795vegetation, construct structures,
2798associated water supply, wastewater
2802disposal, and private driveway access
2807facilities, and no construction, additions
2812or reconstruction shall occur in the front
281975 feet of an area immediately adjacent to
2827a water.
2829(b) Clea ring of vegetation within the
2836front 75 feet immediately adjacent to a
2843water shall be limited to that necessary to
2851gain access or remove diseased vegetation.
2857(c) Harvest or regeneration of timber or
2864agricultural crops shall not be limited
2870provided the ero sion of disturbed soils can
2878be controlled through the use of
2884appropriate best management practices, the
2889seasonal scheduling of such activities will
2895avoid work during times of high - flood
2903hazard, and the 75 feet immediately
2909adjacent to and including the norm ally
2916recognized bank of a water is left in its
2925natural state as a buffer strip.
2931(d) As to those lands subdivided prior to
2939January 1, 1985, the governing board shall,
2946in cases of extreme hardship, issue works
2953of the district development permits with
2959excep tions to the conditions listed in Rule
296740B - 4.3030(4)(a) through (c).
2972(e) The 75 - foot setback in paragraphs (a)
2981through (d) above shall be considered a
2988minimum depth for an undisturbed buffer.
2994The limitations on disturbance and clearing
3000within the buffer as set out in paragraphs
3008(a) through (d) above shall apply, and any
3016runoff through the buffer shall be
3022maintained as unchannelized sheet flow.
3027The actual depth of the setback and buffer
3035for any land use other than single - family
3044residential development, a griculture, or
3049forestry shall be calculated in accordance
3055with the methodology in: "Urban Hydrology
3061for Small Watersheds", U.S. Department of
3067Agriculture, Soil Conservation Service,
3071Engineering Division, Technical Release 55,
3076June 1986; and, "Buffer Zone Study for
3083Suwannee River Water Management District",
3088Dames and Moore, September 8, 1988, such
3095that the post - development composite curve
3102number for any one - acre area within the
3111encroachment line does not exceed;
31161. a value of 46 for areas within the
3125encro achment line with predominantly Class
3131A soils;
31332. a value of 65 for areas within the
3142encroachment line with predominantly Class
3147B soils;
31493. a value of 77 for areas within the
3158encroachment line with predominantly Class
3163C soils; or
31664. a value of 82 for areas within the
3175encroachment line with predominantly Class
3180D soils. (emphasis supplied)
3184Rule 40B - 4.3040, Florida Administrative Code, reads as
3193follows:
3194Unlawful Use of Works of the District.
3201(1) It shall be unlawful to connect with,
3209place a structure in or across, or
3216otherwise cause development to occur in a
3223work of the district without a works of the
3232district development permit. The district
3237may use any remedy available to it under
3245Chapter 120 or 373, Florida Statutes, and
3252Chapter 40B - 1, Florida Adm inistrative Code,
3260to cause an unpermitted development to be
3267removed or permitted.
3270(2) It shall be unlawful for any permitted
3278use to violate the provisions of Chapter
3285373, Florida Statutes, or this chapter, or
3292the limiting conditions of a works of the
3300dis trict development permit. The district
3306may use any remedy available to it under
3314Chapter 120 or 373, Florida Statutes, and
3321Chapter 40B - 1, Florida Administrative Code,
3328to cause the unpermitted use to be removed
3336or brought into compliance with Chapter
3342373, F lorida Statutes, and this chapter.
3349(3) Damage to works of the district
3356resulting from violations specified in Rule
336240B - 4.3040(1) and (2) above shall be
3370repaired by the violator to the
3376satisfaction of the district. In lieu of
3383making repairs, the violator may deposit
3389with the district a sufficient sum to
3396insure such repair.
3399Rule 40B - 400.103(1)(h), Florida Administrative Code,
3406reads as follows:
3409(1) In order to obtain a standard general,
3417individual, or conceptual approval permit
3422under this chapter or chap ter 40B - 4,
3431F.A.C., an applicant must provide
3436reasonable assurance that the construction,
3441alteration, operation, maintenance, removal
3445or abandonment of a surface water
3451management system:
3453* * *
3456(h) Will not cause adverse impacts to a
3464work of the Distr ict established pursuant
3471to s. 373.086. . . .
3477Facts Based Upon the Evidence of Record
3484History of the rules
348811. Mr. David Fisk is Assistant Director of the
3497District. At the time of the hearing, he had been employed
3508there for 26 and one - half years. He p layed a significant role
3522in the rule adoption process of the rules that are the subject
3534of this dispute.
353712. As part of that process, the District entered into a
3548consulting contract with an engineering, planning, and
3555consulting firm and consulted with t he U.S. Corps of Engineers
3566and the Federal Emergency Management Agency (FEMA), to conduct
3575what are described as the FEMA flood studies.
358313. Additionally, the district commissioned an aerial
3590photography consultant who provided a series of rectified
3598ortho photographs of the entire floodplain of the rivers
3607within the District, and a surveying subcontractor who
3615provided vertical control and survey cross sections and
3623hydrographic surveys of the rivers. The District also worked
3632in conjunction with the United States Geological Survey to
3641accumulate all of the hydrologic record available on flooding.
3650The information was given to the U.S. Army Corps of Engineers
3661who, operating under FEMA guidelines for conducting flood
3669insurance rate studies, performed the analyt ical and computer
3678modeling work to identify the flood plains and floodway
3687boundaries.
368814. The District used the amassed knowledge of maps,
3697cross sections and surveys that were developed as part of the
3708FEMA flood studies as technical evidence or support f or the
3719adoption of the works of the district rules.
372715. Following a series of public workshops and public
3736hearings in 1985, the rules were adopted and became effective
3746in 1986. None of the rules were challenged in their proposed
3757state.
375816. The District adopted the floodways of the Suwannee,
3767Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works
3776of the district. According to Mr. Fisk, the District adopted
3786the rules pursuant to Section 373.086, Florida Statutes, which
3795provided authority to the Dist rict to adopt district works and
3806Section 373.085, Florida Statutes, which provided authority to
3814regulate activities within those works.
3819The Floodway Line
382217. Petitioner hired Mr. John Barnard, a professional
3830civil engineer, with extensive environmental permitting
3836experience, to look at the floodway and floodplain issues
3845associated with Petitioner's site and project. Mr. Barnard
3853conducted an engineering study entitled, "Floodplain
3859Evaluation." It was Mr. Barnard's opinion that FEMA's
3867determination of t he floodway line was less than precise. Mr.
3878Barnard used FEMA's data regarding the base flood elevation
3887but manually changed the encroachment factor resulting in his
3896placement of the floodway line in a different location than
3906determined by FEMA. Mr. Barn ard acknowledged that different
3915engineers using different encroachment factors would reach
3922different conclusions. 1/
392518. Respondent's expert in hydrology and hydraulic
3932engineering, Brett Cunningham, noted that the definition of
3940floodway in Rule 40B - 4.1 020(12), Florida Administrative Code,
3950is essentially the same definition that used is in the FEMA
3961regulations and which also is commonly used across the country
3971in environmental rules and regulations. Mr. Barnard also
3979acknowledged that the District's defi nition of "floodway", as
3988found in Rule 40B - 4.1020(12), Florida Administrative Code, is
3998fairly commonly used by environmental regulatory agencies.
4005Moreover, it was Mr. Cunningham's opinion that the Alapaha
4014River is a stream or watercourse within the meanin g of the
4026rule and its floodway an accompanying land.
403319. In Mr. Cunningham's opinion, the FEMA flood
4041insurance studies are widely used across the country for a
4051variety of reasons and are typically relied upon by
4060hydrologists and engineers to locate floodwa ys.
406720. The definition of "works of the district" in
4076Rule 40B - 1020(30), Florida Administrative Code, is taken
4085directly from the language found in Section 373.019(23),
4093Florida Statutes. The statutory definition includes express
4100references to stream s and other watercourses, together with
4109the appurtenant facilities and accompanying lands.
411521. Petitioner alleges that the phrase "will not cause
4124adverse impact to a work of the SRWMD" as found in Rule 40B -
4138400.103(1)(h) is not clear because it does not identify what
4148specific adverse impacts are being reviewed. While
4155Petitioner's expert, Mr. Price, was not clear as to what the
4166phrase means, Respondent's expert, Mr. Cunningham, understood
4173the meaning of the phrase and noted that "adverse impact" is a
4185phra se which is very commonplace in the rules and regulations
4196of environmental agencies and is attributed a commonsense
4204definition.
420522. The expert engineers differed in their opinions as
4214to the meaning of the term "potential for reducing floodway
4224conveyance " as used in Rule 40B - 4.2030(4), Florida
4233Administrative Code. According to Petitioner's expert
4239engineer, Mr. Barnard, "potential for reducing floodway
4246conveyance" is not a specific term that is open to
4256interpretation as an engineer, and that he cannot qua ntify
4266what constitutes "potential." Respondent's expert,
4271Mr. Cunningham, understood the meaning of the phrase to be any
4282increase in floodway conveyance. It was his opinion that
4291there was nothing about that phrase to cause confusion.
430023. Rule 40B - 4.30 30, Florida Administrative Code,
4309addresses conditions for issuance of works of the district
4318development permits. Petitioner's expert Mr. Price testified
4325that there is no quantification to what constitutes an
"4334increase in soil erosion" as referenced in sub section (2) and
4345linked the reference of soil erosion to a 100 - year flood event
4358referenced in the same subsection.
436324. Mr. Cunningham was of the opinion that there is no
4374need to quantify an increase in soil erosion in the rule. He
4386noted that soil erosio n is used in a common sense manner and
4399that attempting to put a numerical limit on it is not
4410practical and "it's not something that's done anywhere
4418throughout the country. It's just not something that lends
4427itself to easy quantification like flood stages do".
443625. Mr. Cunningham's opinion that the words and phrases
4445which Petitioner asserts are vague are words of common usage
4455and understanding to persons in the field is the more
4465persuasive testimony. This opinion is also consistent with
4473statutory construct ion used by courts which will be addressed
4483in the conclusions of law.
4488CONCLUSIONS OF LAW
449126. The Division of Administrative Hearings has
4498jurisdiction over the parties and subject matter of this
4507proceeding pursuant to Section 120.56(1) and (3), Florida
4515Sta tutes.
451727. Petitioner has proven that it has standing to
4526challenge the rules which are the subject of this dispute.
453628. The party attacking an existing agency rule has the
4546burden to prove that the rule constitutes an invalid exercise
4556of delegated legisla tive authority. Cortes v. State Board of
4566Regents , 655 So. 2d 132 (Fla. 1st DCA 1995). The challenger's
4577burden is a stringent one. Id. ; Charity v. Florida State
4587University , 680 So. 2d 463 (Fla. 1st DCA 1996).
459629. The Second Amended Petition to Determine Validity of
4605Existing Rules alleges that Rules 40B - 1.702(4); 40B - 4.1020(12)
4616and (30); 40B - 4.1030; 40B - 4.1040(1)(b) and (c); 40B - 4.2030(4);
462940B - 4.3000(1)(a); 40B - 4.3010; 40B - 3020; 40B - 4.3030; 40B -
46434.3040; and 40B - 400.103(1)(h), Florida Administrative Code,
4651a re an invalid exercise of delegated legislative authority
4660within the context of Section 120.52(8), Florida Statutes.
466830. Petitioner asserts that the WOD rules are without
4677statutory authority in that the enabling statutes do not give
4687the District specifi c powers or duties to implement the WOD
4698rules; the District materially failed to follow the
4706applicable rulemaking procedures by using FEMA and other
4714sources without identifying the criteria or incorporating it
4722by reference; are vague, fail to establish ad equate standards
4732for agency decisions, or vest unbridled discretion in the
4741District; are arbitrary or capricious, are not supported by
4750competent substantial evidence, and impose regulatory costs
4757that could be reduced by the adoption of less costly
4767alternat ives that substantially accomplish the statutory
4774objectives.
477531. While Petitioner argues that as a whole the WOD
4785rules are an invalid exercise of delegated legislative
4793authority, Petitioner focuses on certain rules or portions of
4802rules as grounds for the a lleged invalidity of the existing
4813rules.
481432. Petitioner asserts that the following words and
4822phrases are vague and arbitrary: the definition of "floodway"
4831in Rule 40B - 4.1020(12); the definition of "work of the
4842district" in
4844Rule 40B - 4.1020(30); the phras e "potential of reducing
4854floodway conveyance" in Rule 40B - 4.2030(4); and the phrase
"4864will not cause adverse impact to a work of the SRWMD" in Rule
487740B - 400.103(1)(h), Florida Administrative Code.
488333. Petitioner asserts that the definitions of
"4890floodway" and "works of the district" exceed the grant of
4900rulemaking authority, enlarge, modify, or contravene the
4907specific provisions of law implemented; fail to establish
4915adequate standards for agency decisions, and/or vests
4922unbridled discretion in the District, o r are arbitrary or
4932capricious.
493334. Further, Petitioner asserts that there is no
4941quantification in Rule 40B - 4.3030(2), Florida Administrative
4949Code, as to how the prohibition of "reducing soil erosion"
4959applies to determining whether or not an activity is
4968pe rmittable within a WOD; and that there are no clear
4979criteria, standards, or guidance in the WOD rules for
4988demonstrating compliance with the rules resulting in the
4996District having unbridled discretion.
500035. Section 120.52(8), Florida Statutes, reads as
5007fo llows:
5009(8) "Invalid exercise of delegated
5014legislative authority" means action which
5019goes beyond the powers, functions, and
5025duties delegated by the Legislature. A
5031proposed or existing rule is an invalid
5038exercise of delegated legislative authority
5043if any o ne of the following applies:
5051(a) The agency has materially failed to
5058follow the applicable rulemaking procedures
5063or requirements set forth in this chapter;
5070(b) The agency has exceeded its grant of
5078rulemaking authority, citation to which is
5084required by s. 120.54(3)(a)1.;
5088(c) The rule enlarges, modifies, or
5094contravenes the specific provisions of law
5100implemented, citation to which is required
5106by s. 120.54(3)(a)1.;
5109(d) The rule is vague, fails to establish
5117adequate standards for agency decisions, or
5123ves ts unbridled discretion in the agency;
5130(e) The rule is arbitrary or capricious;
5137(f) The rule is not supported by competent
5145substantial evidence; or
5148(g) The rule imposes regulatory costs on
5155the regulated person, county, or city which
5162could be reduced by the adoption of less
5170costly alternatives that substantially
5174accomplish the statutory objectives.
517836. Section 373.044, Florida Statutes, reads as follows:
5186Rules; enforcement; availability of
5190personnel rules. -
5194The governing board of the district is
5201aut horized to adopt rules pursuant to
5208ss. 120.536(1) and 120.54 to implement the
5215provisions of this chapter. Rules and
5221orders may be enforced by mandatory
5227injunction or other appropriate action in
5233the courts of the state. Rules relating to
5241personnel m atters shall be made available
5248to the public and affected persons at no
5256more than cost but need not be published in
5265the Florida Administrative Code or the
5271Florida Administrative Weekly.
527437. Section 373.113, Florida Statutes, reads as follows:
5282Adoption of rules by the governing board. -
5291In administering the provisions of this
5297chapter the governing board has authority
5303to adopt rules pursuant to ss. 120.536(1)
5310and 120.54 to implement provisions of law
5317conferring powers or duties upon it.
532338. Section 373.17 1, Florida Statutes, reads as follows:
5332(1) In order to obtain the most beneficial
5340use of the water resources of the state and
5349to protect the public health, safety, and
5356welfare and the interests of the water
5363users affected, governing boards, by action
5369not inconsistent with the other provisions
5375of this law and without impairing property
5382rights, may:
5384(a) Adopt rules or issue orders affecting
5391the use of water, as conditions warrant,
5398and forbidding the construction of new
5404diversion facilities or wells, the
5409in itiation of new water uses, or the
5417modification of any existing uses,
5422diversion facilities, or storage facilities
5427within the affected area.
5431(b) Regulate the use of water within the
5439affected area by apportioning, limiting, or
5445rotating uses of water or by preventing
5452those uses which the governing board finds
5459have ceased to be reasonable or beneficial.
5466(c) Issue orders and adopt rules pursuant
5473to ss. 120.536(1) and 120.54 to implement
5480the provisions of this chapter.
5485(2) In adopting rules and issuing orde rs
5493under this law, the governing board shall
5500act with a view to full protection of the
5509existing rights to water in this state
5516insofar as is consistent with the purpose
5523of this law.
5526(3) No rule or order shall require any
5534modification of existing use or di sposition
5541of water in the district unless it is shown
5550that the use or disposition proposed to be
5558modified is detrimental to other water
5564users or to the water resources of the
5572state.
5573(4) All rules adopted by the governing
5580board shall be filed with the Dep artment of
5589State as provided in chapter 120. An
5596information copy will be filed with the
5603Department of Environmental Protection.
560739. Section 373.019(23), Florida Statutes, reads as
5614follows:
5615(23) "Works of the district" means those
5622projects and works, inc luding, but not
5629limited to, structures, impoundments,
5633wells, streams, and other watercourses,
5638together with the appurtenant facilities
5643and accompanying lands, which have been
5649officially adopted by the governing board
5655of the district as works of the distric t.
566440. Section 373.085, Florida Statutes, reads as follows:
5672Use of works or land by other districts or
5681private persons. -
5685(1) The governing board has authority to
5692prescribe the manner in which local works
5699provided by other districts or by private
5706person s will connect with and make use of
5715the works or land of the district, to issue
5724permits therefor, and to cancel the permits
5731for noncompliance with the conditions
5736thereof or for other cause. It is unlawful
5744to connect with or make use of the works or
5754land o f the district without consent in
5762writing from its governing board, and the
5769board has authority to prevent or, if done,
5777estop or terminate the same. The use of
5785the works or land of the district for
5793access is governed by this section and is
5801not subject to the provisions of s. 704.01.
5809However, any land or works of the district
5817which have historically been used for
5823public access to the ocean by means of the
5832North New River Canal and its tributaries
5839may not be closed for this purpose unless
5847the district can d emonstrate that
5853significant harm to the resource would
5859result from such public use.
5864(2) Damage resulting from unlawful use of
5871such works, or from violations of the
5878conditions of permit issued by the board
5885shall, if made by other than a public
5893agency, be subject to such penalty as is or
5902may be prescribed by law and in addition
5910thereto by a date and in a manner
5918prescribed by the board, repair of said
5925damage to the satisfaction of said board,
5932or deposit with said board a sum sufficient
5940therefor, and if by a public agency, then
5948at the expense of such agency the repair of
5957said damage to the satisfaction of the
5964board or the deposit with said board of a
5973sum sufficient therefor.
597641. Section 373.086, Florida Statutes, provides in
5983pertinent part:
5985PROVIDING FOR DIS TRICT WORKS . -
5993(1) In order to carry out the works for
6002the district, and for effectuating the
6008purposes of this chapter, the governing
6014board is authorized to clean out,
6020straighten, enlarge, or change the course
6026of any waterway, natural or artificial,
6032with in or without the district; to provide
6040such canals, levees, dikes, dams,
6045sluiceways, reservoirs, holding basins,
6049floodways, pumping stations, bridges,
6053highways, and other works and facilities
6059which the board may deem necessary; to
6066establish, maintain, and regulate water
6071levels in all canals, lakes, rivers,
6077channels, reservoirs, streams, or other
6082bodies of water owned or maintained by the
6090district; to cross any highway or railway
6097with works of the district and to hold,
6105control, and acquire by donation, lease , or
6112purchase, or to condemn any land, public or
6120private, needed for rights - of - way or other
6130purposes, and may remove any building or
6137other obstruction necessary for the
6142construction, maintenance, and operation of
6147the works; and to hold and have full
6155contro l over the works and rights - of - way of
6167the district.
6169(2) The works of the district shall be
6177those adopted by the governing board of the
6185district. The district may require or take
6192over for operation and maintenance such
6198works of other districts as the gov erning
6206board may deem advisable under agreement
6212with such districts.
6215Rule Challenge Analysis
6218Section 120.52(8)(a), Florida Statutes
622242. Petitioner alleges that the agency has materially
6230failed to follow the applicable rulemaking authority by using
6239crit eria from FEMA and other sources without identifying the
6249criteria or incorporating any of it by reference. In the
6259context of an analysis of the procedural requirements of
6268rulemaking, it is not necessary for the agency to incorporate
6278the informational sour ce by reference.
628443. The rules in question were adopted over 20 years
6294ago. The foregoing findings of fact outline the process used
6304by the Board in its rule adoption. There is no competent
6315evidence in the record that Respondent failed to follow the
6325appl icable rulemaking procedures that existed at the time of
6335the rule adoption.
6338Section 120.52(8)(b)and (c), Florida Statutes
634344. Petitioner asserts that the District's definitions
6350of "floodway" and "works of the district" as found in Rule
636140B - 4.1020 (12) and (30), Florida Administrative Code, exceed
6371its rulemaking authority and enlarge, modify or contravene the
6380specific law implemented in violation of Section 120.52(8)(b)
6388and (c), Florida Statutes. 2/
639345. Petitioner asserts in its Proposed Final Orde r that
6403Rule 40B - 4.3000, which identifies the works of the district,
6414is invalid because the agency has exceeded its grant of
6424rulemaking authority and the rule enlarges, modifies, or
6432contravenes the specific provisions of law implemented. 3/
644046. Section 3 73.044, Florida Statutes, authorizes the
6448governing board of directors of the District to adopt rules to
6459implement the provisions of Chapter 373, Florida Statutes.
6467Section 373.171(1), Florida Statutes, contains similar
6473language. Section 373.113, Florida S tatutes, grants authority
6481to the governing board of the District to adopt rules to
6492implement provisions of law conferring powers or duties upon
6501it.
650247. Section 373.086(1), Florida Statutes, grants broad
6509authority to the District in regulating its works of the
6519district, includes a specific reference to providing such
"6527floodways" which the board may deem necessary, and gives
"6536full control" over the works of the district to the governing
6547board of the water management district. Section 373.085,
6555Florida Sta tutes, authorizes the governing board of water
6564management districts to prescribe the manner in which local
6573works provided by other districts or by private persons will
6583connect with and make use of the works or land of the
6595District.
659648. Section 373.086(2), Florida Statutes, confers powers
6603and duties on the governing board of the District and states
6614that the works of the district shall be those adopted by the
6626governing board of the district. Moreover, the definition of
"6635work of the district" in Rule 40B - 4.1 020(30), Florida
6646Administrative Code, is taken directly from the language found
6655in Section 373.019(23), Florida Statutes.
666049. "The authority to adopt an administrative rule must
6669be based on an explicit power or duty identified in the
6680enabling statute . . . [T]he authority for an administrative
6690rule is not a matter of degree. The question is whether the
6702statute contains a specific grant of legislative authority for
6711the rule, not whether the grant of authority is specific
6721enough ." Florida Board of Medicin e, et al., v. Florida
6732Academy of Cosmetic Surgery, Inc., et al. , (emphasis in
6741original)(27 Fla.L.Weekly D230), quoting Southwest Florida
6747Water Management District v. Save the Manatee Club, Inc. , 773
6757So. 2d 594, 599 (Fla. 1st DCA 2000). 4/
676650. Based u pon the statutory authority outlined above,
6775the District has not exceeded its grant of rulemaking
6784authority and the challenged rules do not enlarge, modify, or
6794contravene the specific provisions of law implemented.
6801Further, the challenged rules implement or interpret the
6809specific powers and duties granted by the enabling statute.
6818Section 120.52(8)(d) and (e), Florida Statutes
682451. Petitioner alleges that the entire body of WOD rules
6834is vague, fails to establish adequate standards for agency
6843decisions, o r vests unbridled discretion in the agency.
685252. In particular, Petitioner asserts vagueness
6858regarding the above referenced definition of "floodway,"
6865describing the definition of floodway as "too vague for a
6875person using standard engineering practices to determine the
6883location of the floodway within the District's WOD." 5/
689253. The evidence suggests otherwise. The definition of
"6900floodway" in Rule 40B - 4.1020(12) is essentially the same
6910definition that is used in the FEMA regulations and that
6920definition is commonly used across the country in
6928environmental rules and regulations.
693254. Petitioner asserts that the phrase "potential of
6940reducing floodway conveyance" in Rule 40B - 4.2030(4), Florida
6949Administrative Code, is vague and arbitrary in that one cannot
6959qua ntify what constitutes "potential." The word "potential"
6967has a plain and ordinary meaning: "existing in possibility:
6976capable of development into actuality." Webster's Ninth New
6984Collegiate Dictionary .
698755. Petitioner asserts that the phrase "will not cau se
6997adverse impact" in Rule 40B - 400.103(1)(h), Florida
7005Administrative Code, is vague and arbitrary. As established
7013in the findings of fact, the phrase "adverse impact" is
7023commonly used in the rules and regulations of environmental
7032agencies. 6/
703456. An adm inistrative rule is invalid if the rule
7044requires the performance of an act in terms that are so vague
7056that persons of common intelligence must guess at its meaning.
7066Southwest Florida Water Management District v. Charlotte
7073County , 774 So. 2d 903 (Fla. 2nd DCA 2001), citing Donato v.
7085American Telephone & Telegraph , 767 So. 2d 1146 (Fla. 2000).
709557. Where the legislature has not defined words or
7104phrases, they must be construed in accordance with their
7113common and ordinary meaning. "The words in a statute mu st be
7125construed according to their plain and ordinary meaning, or
7134according to the meaning assigned to the terms by the class of
7146persons within the purview of the statute." Southwest Florida
7155Water Management District v. Charlotte County , supra , citing
7163Flo rida East Coast Industries v. Department of Community
7172Affairs , 677 So. 2d 357 (Fla. 1st DCA 1999).
718158. The words "floodway," "potential," and "adverse
7188impact," are commonly used and understood by the class of
7198persons within the purview of the District's e nabling
7207statutes. Moreover, "soil erosion" is used in the context of
7217the rule in a common sense manner which does not necessitate
7228putting a numerical limit on it.
723459. Petitioner further asserts that there are
7241insufficient criteria and standards in Rule 40B - 3030(2) and
7251(3), Florida Administrative Code, which addresses conditions
7258for issuance of works of the district, resulting in the
7268district having unbridled discretion.
727260. Sections 373.085 and 373.086, Florida Statutes, give
7280the District broad author ity to provide for, adopt, and
7290regulate activities of works of the district. The WOD rules
7300implement the powers and duties conferred upon the District by
7310the Legislature. "The Legislature itself is hardly suited to
7319anticipate the endless variety of situa tions that may occur or
7330to rigidly prescribe the conditions or solutions to the often
7340fact - specific situations that arise." Avatar Development
7348Corp. v. State , 723 So. 2d 199 (Fla. 1998).
735761. The language of the challenged rules is not vague,
7367and u ses words and phrases commonly used by persons dealing
7378with environmental regulatory agencies. The language of the
7386challenged rules does not fail to establish adequate standards
7395for agency decisions or vest unbridled discretion in the
7404agency. See Humhosc o, Inc. v. Department of Health and
7414Rehabilitative Services , 476 So. 2d 258, 261 (Fla. 1st DCA
74241985); and Southwest Florida Water Management District v.
7432Charlote County , supra .
743662. "A rule is 'arbitrary' if it is not supported by
7447facts or logic, and 'c apricious' only if it is irrational."
7458Florida Board of Medicine v. Florida Academy , supra , at 18,
7468citing Board of Clinical Laboratory Pers. v. Florida Assn. Of
7478Blood Banks , 721 So. 2d 317, 318 (Fla. 1st DCA 1998).
748963. As established in the findings of fact, the
7498challenged rules are supported by facts and logic. The
7507challenged rules are rational. Based upon the evidence
7515presented, the language of the challenged rules is not
7524arbitrary or capricious.
7527Section 120.52(8)(f), Florida Statutes
753164. Petitione r alleges that the WOD rules are not
7541supported by competent substantial evidence. The scope of
7549review in this proceeding is limited to whether legally
7558sufficient evidence exists to support the rules. An
7566Administrative Law Judge may not independently rewe igh the
7575evidence, assess the credibility of, or substitute judgment
7583regarding the wisdom of the rules. Florida Board of Medicine,
7593et al., v. Florida Academy of Cosmetic Surgery, Inc.; et al. ,
7604supra . Based upon the evidence of record, legally sufficient
7614e vidence exists to support all of the WOD rules. Accordingly,
7625the WOD rules are supported by competent substantial evidence.
7634Section 120.52(8)(g), Florida Statutes
763865. Petitioner asserts that the WOD rules impose
7646regulatory costs on the regulated pers on, county, or city
7656which could be reduced by the adoption of less costly
7666alternatives that substantially accomplish the statutory
7672objectives. Subsection (g) of Section 120.52(8) was added
7680in 1996 and was not in existence in 1985 when the subject
7692rule s were adopted. A general rule of statutory construction
7702is that a substantive statute will not operate retrospectively
7711absent clear legislative intent to the contrary. State Farm
7720Mutual Auto Insurance v. Laforet , 658 So. 2d 55, 61 (Fla.
77311995). 7/ There is nothing in the Second Amended Petition
7741which raises a concern that the District did not comply with
7752the requirements that existed at the time of adoption
7761regarding economic impact.
776466. Finally, Petitioner challenges the validity of the
7772WOD rules as applied. Those arguments will not be addressed
7782in this order as that is beyond the scope of this proceeding.
7794The fact that as agency may erroneously or wrongfully apply a
7805rule does not invalidate the rule. The remedy for an
7815erroneous application of a ru le is a proceeding under Section
7826120.57(1), Florida Statutes. 8/ Hasper v. Department of
7834Administration , 459 So. 2d 398 (Fla. 1st DCA 1984).
7843ORDER
7844Based upon the foregoing Findings of Fact and Conclusions
7853of Law, it is
7857ORDERED:
78581. The Second Amended Peti tion to Determine Validity of
7868Existing Rules is dismissed.
78722. Respondent's request for attorney's fees pursuant to
7880Section 120.595, Florida Statutes, is denied.
7886DONE AND ORDERED this 12th day of April, 2002, in
7896Tallahassee, Leon County, Florida.
7900_________ __________________________
7902BARBARA J. STAROS
7905Administrative Law Judge
7908Division of Administrative Hearings
7912The DeSoto Building
79151230 Apalachee Parkway
7918Tallahassee, Florida 32399 - 3060
7923(850) 488 - 9675 SUNCOM 278 - 9675
7931Fax Filing (850) 921 - 6847
7937www.doah.state. fl.us
7939Filed with the Clerk of the
7945Division of Administrative Hearings
7949this 12th day of April, 2002.
7955ENDNOTES
79561/ A more detailed analysis of Mr. Barnard's methodology and
7966conclusion will not be addressed here. Whether there is an
7976alternative method or even a better method than that chosen by
7987the District does not matter in a facial challenge to the
7998validity of an existing rule. State Department of Health and
8008Rehabilitative Services v Framat Realty , 407 So. 2d 238 (Fla.
80181st DCA 1981).
80212/ Petitioner's vagueness argument focused more on the
8029definition of "floodway". While the Second Amended Petition
8038to Determine Validity of Rules alleged the definition of
"8047works of the district" was vague, Petitioner's primary
8055argument was that the definition of "works of the district"
8065had no statutory authority.
80693/ While the Second Amended Petition to Determine Invalidity
8078of Existing Rules enumerates Rule 40B - 4.3000 as part of the
8090rule validity challenge, the ground that this rule violates
8099(b) and (c) was not clear ly alleged. In any event, the
8111district has the statutory authority to adopt the Alapaha
8120River as a work of the district.
81274/ The Court in Florida Board of Medicine , supra , discussed
8137the requirements of the "flush left" language of Section
8146120.52(8), Flor ida Statutes, in conjunction with its analysis
8155of subsections (b)and (c). Accordingly, that analysis is
8163utilized here.
81655/ The Second Amended Petition alleges that the definition of
"8175works of the district" is also vague, fails to establish
8185adequate sta ndards for agency decisions or vests unbridled
8194discretion in the agency. However, in its Proposed Final
8203Order, Petitioner focuses on subsections (b) and (c) of
8212Section 120.52(8) as the basis of its argument regarding the
8222invalidity of the definition of "w orks of the district".
82336/ While the Second Amended Petition to Determine Validity of
8243Rules alleged the definition of "works of the district" is
8253vague, Petitioner's primary argument is that "works of the
8262district" has no statutory authority and is, acc ordingly,
8271discussed under that criterion.
82757/ Compare to section 9, Chapter 96 - 159, Laws of Florida,
8287which required agencies to identify each rule or portions
8296thereof which exceeded the rulemaking authority of the flush
8305left language of Section 102.52(8) , Florida Statutes.
8312Accordingly, the analysis of the rules herein regarding
8320specific legislative authority was made under the "new"
8328standard, not the one in existence at the time the rules were
8340adopted.
83418/ This is not a finding that the District err oneously or
8353wrongfully applied its WOD rules to Petitioner or to anyone
8363else.
8364COPIES FURNISHED :
8367Bruce W. Robinson, Esquire
8371Brannon, Brown, Haley,
8374Robinson & Bullock, P.A.
8378Post Office Box 1029
8382Lake City, Florida 32056
8386Daniel H. Thompson, Esquir e
8391Berger, Davis & Singerman, P.A.
8396215 South Monroe Street
8400Suite 705
8402Tallahassee, Florida 32301
8405Jerry Scarborough, Executive Director
8409Suwannee River Water Management District
84149225 County Road 49
8418Live Oak, Florida 32060
8422Carroll Webb, Executive Director
8426J oint Administrative Procedures Committee
8431120 Holland Building
8434Tallahassee, Florida 32399 - 1300
8439Liz Cloud, Chief
8442Bureau of Administrative Code
8446The Elliot Building
8449Tallahassee, Florida 32399 - 0250
8454NOTICE OF RIGHT TO JUDICIAL REVIEW
8460A party who i s adversely affected by this Final Order is
8472entitled to judicial review pursuant to Section 120.68,
8480Florida Statutes. Review proceedings are governed by the
8488Florida Rules of Appellate Procedure. Such proceedings are
8496commenced by filing the original notic e of appeal with the
8507Clerk of the Division of Administrative Hearings and a copy,
8517accompanied by filing fees prescribed by law, with the
8526District Court of Appeal, First District, or with the District
8536Court of Appeal in the Appellate District where the part y
8547resides. The notice of appeal must be filed within 30 days of
8559rendition of the order to be reviewed.
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- Date
- Proceedings
- Date: 10/22/2002
- Proceedings: File Returned to the Agency.
-
PDF:
- Date: 10/08/2002
- Proceedings: Order from the District Court of Appeal: "Appeal dismissed pursuant to Florida Rules of Appellated Procedure 9.350(b)."
- Date: 07/09/2002
- Proceedings: Index sent out.
-
PDF:
- Date: 05/16/2002
- Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 1D02-1902
-
PDF:
- Date: 04/12/2002
- Proceedings: Final Order issued (hearing held January 10 and 28, 2002). CASE CLOSED.
-
PDF:
- Date: 02/21/2002
- Proceedings: Order on Motion to Extend Page Length or Allow Memorandum of Law issued.
-
PDF:
- Date: 02/21/2002
- Proceedings: Response to Motion to Leave to Extend Page Length or Allow Memorandum of Law (filed by Respondent via facsimile).
-
PDF:
- Date: 02/20/2002
- Proceedings: Motion for Leave to Extend Page Length or Allow Memorandum of Law (filed by Petitioner via facsimile).
- Date: 02/11/2002
- Proceedings: Transcript Volumes I through III filed.
- Date: 01/28/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
-
PDF:
- Date: 01/14/2002
- Proceedings: Notice of Hearing issued (hearing set for January 28, 2002; 9:30 a.m.; Live Oak, FL).
- Date: 01/10/2002
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
-
PDF:
- Date: 01/07/2002
- Proceedings: Answer to First Amended Petition to Determine Validity of Agency Statements Defined as Rules filed by Respondent.
-
PDF:
- Date: 01/07/2002
- Proceedings: Notice of Service of Answers to Third Set of Interrogatories filed by Respondent.
-
PDF:
- Date: 01/04/2002
- Proceedings: Answer to Second Amended Petition to Determine Validity of Existing Rules filed by Respondent.
-
PDF:
- Date: 12/20/2001
- Proceedings: Notice of Unavailability of Counsel (filed by Petitioner via facsimile).
-
PDF:
- Date: 12/19/2001
- Proceedings: First Amended Petition to Determine Validity of Agency Statements Defined as Rules filed by Petitioner.
-
PDF:
- Date: 12/19/2001
- Proceedings: Motion for Leave to Amend Petition to Determine Validity of Agency Statements Defined as Rules and First Amended Petition to Determine Validity of Existing Rules filed by Petitioner.
-
PDF:
- Date: 12/19/2001
- Proceedings: Second Amended Petition to Determine Validity of Existing Rules filed by Petitioner.
-
PDF:
- Date: 12/17/2001
- Proceedings: Resondent`s Response to Petitioner`s Second Request to Produce filed.
-
PDF:
- Date: 12/17/2001
- Proceedings: Objection to Third Request to Produce and Third Set of Interrogatories Propounded by Petitioner to Respondent filed.
-
PDF:
- Date: 12/17/2001
- Proceedings: Petitioner`s Motion to Compel Answers to Third Request to Produce and Third Set of Interrogatories (filed via facsimile)
-
PDF:
- Date: 12/14/2001
- Proceedings: Petitioner`s Response to Order on Respondent`s Motion to Compel Petitioner`s Answers to Second Set of Interrogatories (filed via facsimile).
-
PDF:
- Date: 12/12/2001
- Proceedings: Petitioner`s Third Request for Production of Documents (filed via facsimile).
-
PDF:
- Date: 12/12/2001
- Proceedings: Petitioner`s Notice fo Propounding its Third Set of Interrogatories to Respondent (filed via facsimile).
-
PDF:
- Date: 12/06/2001
- Proceedings: Order on Respondent`s Motion to Compel Petitioner`s Answer to Second Set of Interrogatories issued.
-
PDF:
- Date: 12/04/2001
- Proceedings: Response to Motion to Compel Petitioner`s Answers to Second Set of Interrogatories (filed by Petitioner via facsimile).
-
PDF:
- Date: 12/04/2001
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for January 10, 2002; 9:30 a.m.; Live Oak, FL).
-
PDF:
- Date: 11/30/2001
- Proceedings: Motion to Compel Petitioner`s Answers to Second Set of Interrogatories filed by Respondent.
-
PDF:
- Date: 11/30/2001
- Proceedings: Notice of Taking Deposition Duces Tecum, Designated representative of Anglo`s Aggregate materials, Ltd., D. Price, J. Barnard filed.
-
PDF:
- Date: 11/29/2001
- Proceedings: Petitioner`s Second Request for Production of Documents (filed via facsimile).
-
PDF:
- Date: 11/26/2001
- Proceedings: Notice of Service of Answers to Second Set of Interragatories filed by Respondent.
-
PDF:
- Date: 11/21/2001
- Proceedings: Notice of Taking Depositions Duces Tecum, Representative of SRWMD, D. Till, D, Fisk, J. Hastings, B. Cunningham (filed via facsimile).
-
PDF:
- Date: 11/20/2001
- Proceedings: Notice of Service of Answers to Respondent`s Second Set of Interrogatories to Petitioner (filed by Petitioner via facsimile).
-
PDF:
- Date: 11/15/2001
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for December 7, 2001; 9:00 a.m.; Tallahassee, FL).
-
PDF:
- Date: 11/13/2001
- Proceedings: Order of Consolidation issued. (consolidated cases are: 01-004026RU, 01-004383RX)
-
PDF:
- Date: 11/13/2001
- Proceedings: First Amended Petition to Determine Validity of Existing Rules filed by Petitioner.
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 11/09/2001
- Date Assignment:
- 11/30/2001
- Last Docket Entry:
- 10/22/2002
- Location:
- Live Oak, Florida
- District:
- Northern
- Agency:
- Water Management Districts
- Suffix:
- RX
Counsels
-
Bruce W. Robinson, Esquire
Address of Record -
Daniel Hays Thompson, Esquire
Address of Record